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Boof

Sexual and other Harassment provisions or clauses

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It seems apparent to me from reading Subpart 1.4 and the definitions that one is deviating from the FAR when you confer a right or impose an obligation or use a procedure at any stage of the acquisition process that is inconsistent with the FAR and supplements thereto. Trying to skate around FAR policy, procedures, intent, requirements, etc. by putting the requirement, rights, etc. somewhere in the solicitation that isn't formally identified as a provision or clause (e.g., as a "blurb" or note, special clause, special provision, etc. anywhere in the document) doesn't seem to me to change the fact that it deviates from the FAR.

Maybe that is what Jacques was saying.

Joel,

It's only a deviation if it is inconsistent with the FAR.

You once did construction contracting -- think of all your special contract requirements and specifications -- you didn't treat all of those as deviations -- and you didn't because they weren't inconsistent with the FAR. As long as the term and condition being imposed by the contracting officer isn't inconsistent with the FAR, it isn't a deviation.

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Joel,

It's only a deviation if it is inconsistent with the FAR.

You once did construction contracting -- think of all your special contract requirements and specifications -- you didn't treat all of those as deviations -- and you didn't because they weren't inconsistent with the FAR. As long as the term and condition being imposed by the contracting officer isn't inconsistent with the FAR, it isn't a deviation.

Not true. What is it about FAR 1.401(f) that you don't get?

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Joel,

It's only a deviation if it is inconsistent with the FAR.

You once did construction contracting -- think of all your special contract requirements and specifications -- you didn't treat all of those as deviations -- and you didn't because they weren't inconsistent with the FAR. As long as the term and condition being imposed by the contracting officer isn't inconsistent with the FAR, it isn't a deviation.

Huh, what am I missing here? I said:

...one is deviating from the FAR when you confer a right or impose an obligation or use a procedure at any stage of the acquisition process that is inconsistent with the FAR and supplements thereto.

And I didn't try to fully define or limit what a deviation is to the above. I just said that one is deviating from the FAR when doing the above..

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Not true. What is it about FAR 1.401(f) that you don't get?

Don, Your fetish with FAR 1.401( f ) is troublesome. By its own words, FAR 1.401( f ) applies to "the issuance of policies or procedures that govern the contracting process or otherwise control contracting relationships that are not incorporated into agency acquisition regulations in accordance with 1.301( a )." In this thread, I have consistently talked about contracting officer practice. I'M NOT TALKING ABOUT AN AGENCY'S ISSUANCE OF POLICIES -- I'M TALKING ABOUT INDIVIDUAL CONTRACTING OFFICER PRACTICE. Application of your absurd viewpoint would shut down the entire federal acquisition process. Every single term and condition drafted by a contracting officer, whether in Section H or in a specification or in a statement of work or wherever would have to do through the deviation or rule-making process? That's absurd. The FAR encourages and expects contracting officers to draft terms and conditions appropriate for their contracts, including contract clauses, provided they aren't inconsistent with the FAR.

Here's the bottom line: Individual contracting officers can and should write terms and conditions, including contract clauses as well as statements in SOWs and other contract attachments, as may be needed to support their individual contract actions on an as-needed basis -- and those terms and conditions are not deviations unless they are inconsistent with the FAR.

Joel, I think we agree. My comment was based on your second sentence, not your first sentence. For clarity, I interpret your second sentence as,

Trying to skate around FAR policy, procedures, intent, requirements, etc. by putting the requirement, rights, etc. which are inconsistent with the FAR somewhere in the solicitation that isn't formally identified as a provision or clause (e.g., as a "blurb" or note, special clause, special provision, etc. anywhere in the document) doesn't seem to me to change the fact that it deviates from the FAR.

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Joel, I think we agree. My comment was based on your second sentence, not your first sentence. For clarity, I interpret your second sentence as,

Trying to skate around FAR policy, procedures, intent, requirements, etc. by putting the requirement, rights, etc. which are inconsistent with the FAR somewhere in the solicitation that isn't formally identified as a provision or clause (e.g., as a "blurb" or note, special clause, special provision, etc. anywhere in the document) doesn't seem to me to change the fact that it deviates from the FAR.

ji, yes. My point in that sentence is that putting something that is inconsistent with the FAR - ANYWHERE - in the solicitation should be considered a deviation. It shouldn't matter whether or not it is a "clause" by some narrow definition, a provision, a bidding or proposal evaluation requirement or procedure, a basis of award, part of a statement of work, specification, on a drawing, in some attachment, etc.

The tremendously lonnnnnnnnnnnnnng debate here about what is and what isn't a "clause", seems somehow to me to lose focus on the intent of Subpart 1.4. Don't try to skirt around the real intent of 1.4 by not calling something in a solcitation a "clause", then conveniently include the inconsistency there.

And don't forget that billions of dollars of contracts each year use formats other than the UCF. The same intent and principles should apply, no matter what format is used.

From the Merriam Webster Dictionary definition of "inconsistent" at:http://www.merriam-webster.com/dictionary/inconsistent

...:having parts that disagree with each other : not in agreement with something"

and synonyms for inconsistent from the same Dictionary on-line reference at the same URL:

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If we were limiting the discussion to deviations: A deviation would include "the use of...a practice of conducting acquisition actions of any kind AT ANY STAGE OF THE ACQUISITION PROCESS that is inconsistent with the FAR." Couldn't that also reach language in a contract attachment?

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In this thread, I have consistently talked about contracting officer practice. I'M NOT TALKING ABOUT AN AGENCY'S ISSUANCE OF POLICIES -- I'M TALKING ABOUT INDIVIDUAL CONTRACTING OFFICER PRACTICE.

That's not true. You made no such qualification in your post #46 when you wrote:

A homemade contract clause or other text elsewhere in a contract that is not inconsistent with the FAR is not a deviation.

After I provided a counterexample that proved your assertion incorrect in post #48, you then began to qualify your past statements in post #53:

Everything I've written here is about terms and conditions drafted by contracting officers as a matter of contracting officer practice, not written by agency heads as part of agency regulations.

This is still not clear, however. Are these terms and conditions "prescribed and included in a regulation issued by a suborganization of an agency to satisfy the needs of that particular suborganization", or are they "developed for use at a suborganizational level of an agency, not meant for repetitive use, but intended to meet the needs of an individual acquisition and, thus, impractical to include in either an agency or suborganization acquisition regulation." If the terms and conditions that you refer to fall into the former category, then their use could potentially be a deviation under FAR 1.401( f ), even if they are not inconsistent with the FAR.

Later, in post #76, you wrote the following without qualification:

Joel,

It's only a deviation if it is inconsistent with the FAR.

You once did construction contracting -- think of all your special contract requirements and specifications -- you didn't treat all of those as deviations -- and you didn't because they weren't inconsistent with the FAR. As long as the term and condition being imposed by the contracting officer isn't inconsistent with the FAR, it isn't a deviation.

Those statements are not true as general propositions. Nothing in your post suggests that you are only referring to individual contract actions.

Application of your absurd viewpoint would shut down the entire federal acquisition process. Every single term and condition drafted by a contracting officer, whether in Section H or in a specification or in a statement of work or wherever would have to do through the deviation or rule-making process? That's absurd. The FAR encourages and expects contracting officers to draft terms and conditions appropriate for their contracts, including contract clauses, provided they aren't inconsistent with the FAR.

Hopefully, what I've written above has cleared up your misunderstanding.

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Joel, I think we agree. My comment was based on your second sentence, not your first sentence. For clarity, I interpret your second sentence as,

Trying to skate around FAR policy, procedures, intent, requirements, etc. by putting the requirement, rights, etc. which are inconsistent with the FAR somewhere in the solicitation that isn't formally identified as a provision or clause (e.g., as a "blurb" or note, special clause, special provision, etc. anywhere in the document) doesn't seem to me to change the fact that it deviates from the FAR.

So where something that is inconsistent with FAR is placed within a contract does not affect its status as a deviation. Good. With that in mind, do you want to explain what you meant when you wrote:

The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts involving contractor access to Govenrment facilities or automated systems. It could be, perhaps, included as a contract clause instead. Sometimes, it is easier to deal with a need as a brief statement inside an attachment, rather than as a contract clause. Because the blurb is included as a matter of contracting officer practice rather than agency head direction and regulation, FAR Subpart 1.3 doesn't apply.

You seem to be saying that you can skirt the requirements of FAR subpart 1.3 by including something as a blurb in an attachment instead of as a contract clause. Maybe you can explain what you meant.

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No, but DFARS 252.223-7002 is a clause. Paragraph ( b )(1) states: "The Contractor shall comply with the requirements of the DoD Contractors' Safety Manual for Ammunition and Explosives, DoD 4145.26-M, hereafter referred to as “the manual,” in effect on the date of the solicitation for this contract. The Contractor shall also comply with any other additional requirements included in the schedule of this contract."

The clause is making the manual a term of the contract by telling the contractor to comply with it. So if the manual is a term of the contract, isn't it a clause? And if it's a clause, doesn't DOD have to publish it in accordance with Title 41 of the USC and FAR Subpart 1.3?

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My turn. If ji20874's blurb is contained in Section I, is it a contract clause? If yes, then is the same blurb still a clause if it is contained in the SOW?

I haven't read the blurb. I haven't been reading what others have been saying. I dabbled with Jacques this morning, but I don't understand him and he doesn't understand me, so I won't spend more time on him. I don't want to go back and read what Ji20874 said. I only want to discuss this with you. Otherwise, it gets too confusing.

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No, they already published DFARS 252.223-7002, which required compliance with the manual. The public had the chance to comment on the manual.

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Don:

I do not think that publication of a clause that only refers to the manual constitutes publication of the manual itself and an invitation to comment on its content. If that were the case, then why separately publish the cost principles and the cost accounting standards?

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Boof - I do not know if you are still reading this thread but in going back to the beginning and reading through I wondered if you had seen this in 29 CFR 1604 regarding your post at #16 -

Appendix A to § 1604.11—Background InformationTHE COMMISSION HAS RESCINDED § 1604.11© OF THE GUIDELINES ON SEXUAL HARASSMENT, WHICH SET FORTH THE STANDARD OF EMPLOYER LIABILITY FOR HARASSMENT BY SUPERVISORS. THAT SECTION IS NO LONGER VALID, IN LIGHT OF THE SUPREME COURT DECISIONS IN BURLINGTON INDUSTRIES, INC. V. ELLERTH, 524 U.S. 742 (1998), ANDFARAGHER V. CITY OF BOCA RATON, 524 U.S. 775 (1998). THE COMMISSION HAS ISSUED A POLICY DOCUMENT THAT EXAMINES THE FARAGHER AND ELLERTH DECISIONS AND PROVIDES DETAILED GUIDANCE ON THE ISSUE OF VICARIOUS LIABILITY FOR HARASSMENT BY SUPERVISORS. EEOC ENFORCEMENT GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT BY SUPERVISORS (6/18/99), EEOC COMPLIANCE MANUAL (BNA), N:4075 [bINDER 3]; ALSO AVAILABLE THROUGH E

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While it may do little to resolve any disagreements reflected in this thread, the following bit of history might be relevant.

The Federal Acquisition Streamlining Act added to the Office of Federal Procurement Policy Act language currently codified at 41 U.S.C. 1304(a) (formerly at 41 U.S.C. 425(a)). The law, both at the time of passage and now, calls for including in the FAR “regulations to discourage the use of a nonstandard contract clause on a repetitive basis.” Importantly for this discussion, it requires that the regulation “clearly define what types of contract clauses are to be treated as nonstandard clauses.”

I could not find anything in the Federal Register claiming to implement this section of FASA (section 1093). Rather, I found GAO/NSIAD-96-139, which, at pages 26-27, states no regulatory implementation was required for sec. 1093, because “The FAR already had standard clauses, and FAR Part 1 allows for authorized deviations.”

While obviously the GAO report isn’t binding in any way, it may have reflected the views of the FAR Council at the time.

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The views of the FAR councils have undoubtedly been influenced by Don Mansfield. In February 2014, The Nash & Cibinic Report published an article by Don about the problem of nonstandard "local" contract clauses. See 28 N&CR NL ¶ 8. It bore the uniquely Nash & Cibinic title, "Postscript II: Agency Policy Memos" and was one in a series about failures by agencies to obtain deviation approval and to comply with the publication statute when developing "homegrown" clauses. Don traces the history of the problem and industry complaints about it. The article is required reading for practitioners who want to know what they're talking about.

Don concluded his article as follows:

If one of the purposes of establishing the FAR System was to reduce the administrative burden on federal contractors and prospective contractors, then the system has failed in that respect. In the current environment, federal contractors must adapt to the unique tribal customs of each of the contracting activities with which they conduct business. These customs can vary significantly among contracting offices under the same contracting activity. Fearing reprisal, contractors tend to accept this reality and pass the increased administrative cost to the Government. As such, there is little likelihood that this problem will fix itself.

With acquisition reform on the agenda for the near future, it is a good time for an honest assessment of the state of the FAR System. I suggest that policymakers ask themselves the following questions when contemplating a way forward:

1. Should procurement rules be subject to the same level of administrative review as rules promulgated under the Administrative Procedure Act? (i.e., Should there be a more streamlined process for administrative review of procurement rules?)

2. Should agency heads be given the authority to make procurement rules effective for a limited amount time prior to their publication in the Federal Register?

3. Should the FAR Council prescribe regulations to control the repetitive use of nonstandard clauses as required by 41 USCA § 1304(a)?

4. Regarding the repetitive use of nonstandard clauses, should the law provide for a public protection provision similar to the Paperwork Reduction Act?

5. Should anything be done to control the proliferation of local acquisition regulations? If so, what can be done?

It is unacceptable, if not hypocritical, for the rulemaker to expect compliance with the rules they make when they do not to follow the rules that apply to them. Such behavior by the Government serves to erode the public's trust—a trust that is easy to lose and difficult to regain.

DOD launched a project earlier this year to control the propagation of clauses by DOD components. The project is undoubtedly due in part to Don's piece.

In the spirit of full disclosure to the others who have been posting on this topic, Don and I have been in contact offline and engaging in a Socratic role-play in this thread. ji20874 has unknowingly been playing the part of Thrasymachus in The Republic, right down to the red font and capital letters. (Thrasymachus translates as "fierce fighter.") I suspect that Don is trying to aggravate him to the point of posting entirely in red and caps.

:D

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I wish Don could be honest and honorable here.

That's not true. You made no such qualification in your post #46 when you wrote...

After I provided a counterexample that proved your assertion incorrect in post #48, you then began to qualify your past statements in post #53:...

No, Don. Go all the way back to my comment no. 23. I have been consistent from the beginning.

I believe contracting officers can (and when appropriate, must) write homemade terms and conditions for the particular circumstances of their actions, and that they may do so without a deviation or rulemaking process when those terms and conditions are not inconsistent with the FAR. The notion that EVERY term and condition drafted by a contracting officer to meet the particular circumstances of his or her instant acquisition must be subject to the deviation and/or rulemaking process is absurd -- were that true, the entire acquisition process would grind to a halt as every specification, every SOW, and every other contract attachment would have go through the deviation or rulemaking process.

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Thanks to all the replies on the sexual Harrassment issue. I think we can close that discussion now.

As of the discussion of the clauses that spun off of it. Sounds like the real issue is at what point does some guidance to the contractor become a "clause/provision" and require a FAR deviation to use it. Our section H usually has added travel restrictions, how to get badges, industrial secuity information, removal of contract employees for violating rules, Added guidance on requirement to use SPOT in certtain countries, Other information about hazardous conditions in certain countries, requirement for needing Medivac coverage, etc. We have never thought of any of this as being a true clause although everyone calls every paragraph a "clause" unofficially.

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...I believe contracting officers can (and when appropriate, must) write homemade terms and conditions for the particular circumstances of their actions, and that they may do so without a deviation or rulemaking process when those terms and conditions are not inconsistent with the FAR. The notion that EVERY term and condition drafted by a contracting officer to meet the particular circumstances of his or her instant acquisition must be subject to the deviation and/or rulemaking process is absurd -- were that true, the entire acquisition process would grind to a halt as every specification, every SOW, and every other contract attachment would have go through the deviation or rulemaking process.

ji, I agree with you in principle. In the instant case, I think we are dealing with a situation that doesnt seem to be covered by the FAR system. So, many people might rely upon the Guiding principle at FAR 1.102-4 ( e ):

(e) The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.

However, paragraph ( a ) is often overlooked in this process:

(a) Government members of the Team must be empowered to make acquisition decisions within their areas of responsibility, including selection, negotiation, and administration of contracts consistent with the Guiding Principles. In particular, the contracting officer must have the authority to the maximum extent practicable and consistent with law, to determine the application of rules, regulations, and policies, on a specific contract.

When the specific requirement, procedure or practice isn't addressed by the FAR, the team must first determine what rules, limitations, policies and general business practices might apply before simply adding the practice, requirement or procedure. Here, there have been several considerations mentioned. For Instance: What is the applicability of Title VII to certain sized firms? Can a KO simply extend the requirements to all firms? What is the practicality of and whose responsibility it is to train contractor employees? Is it necessary to train employees? Is it necessary to require employee training? What should be taught in such training? If the situation is such that it creates a hostile work environment, can the government simply extend standards of acceptable behavior to firms and their employees because both the employer and government might be held liable for it? If so, does the contract already allow that without adding additional requirements? Etc, etc.

Finally, I never did understand from the information here, what is the actual root basis of the upper level managements' concern, only that they expressed a directed solution.

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Sorry Boof. You posted while I was drafting mine.

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Boof proposed contract specific requirement (call it what you want clause, blurb, etc.) to which Boof’s agency wanted to add to contracts of the agency. (Ref. Post #1)

Don then made the case, quoting 41 USC 1707 that Boof would not have the authority to write the clause without going through rule making authority. (Ref. Post #7) The post by Don also referenced FAR 1.301(B).

The thread then concentrated on the FAR and how one might interpret it with regard to what a clause is yet there was no further discussion of the U.S.C. that was held up to require Boof to go through the rulemaking process.

Looking to the 41 USC 1707 and the whole of the FAR especially that noted by Joel (FAR 1.102-4) why Boof would have to go through the rule making as 1707 is specific that Boof’s need would have to be a procurement policy, regulation, procedure, or form (including an amendment or modification thereto)” ….”if it has a significant cost or administrative impact on contractors or offerors.”

I am left with the question…..

Is the need suggested by Boof considered to be a "procedure" that has “significant cost or administrative impact” or in other words what is the standard that Boof’s need must meet with regard to cost or administrative impact to cause Boof to follow 41 USC 1707?

Without this question answered I do not see how it could be concluded that Boof would have to go through the rule making process.

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I wish Don could be honest and honorable here.

That's not true. You made no such qualification in your post #46 when you wrote...

After I provided a counterexample that proved your assertion incorrect in post #48, you then began to qualify your past statements in post #53:...

No, Don. Go all the way back to my comment no. 23. I have been consistent from the beginning.

ji20874,

Here is your post #23:

Jacques,

A contract attachment is not a contract clause.

A brief statement inside an attachment is not a contract clause.

However, all three are enforceable in a contract -- clauses, attachments, and brief statements inside attachments.

If someone wants to use the term "clause" to describe a brief statement inside an attachment, that's okay with me.

The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts involving contractor access to Govenrment facilities or automated systems. It could be, perhaps, included as a contract clause instead. Sometimes, it is easier to deal with a need as a brief statement inside an attachment, rather than as a contract clause. Because the blurb is included as a matter of contracting officer practice rather than agency head direction and regulation, FAR Subpart 1.3 doesn't apply.

[The Government] reserves the right and prerogative to deny and/or restrict the facility and information access of any Contractor employee whose actions are in conflict with the standards of conduct or whom [the Government] determines to present a risk of compromising sensitive but unclassified information and/or classified information.

You claim that from this post, the reader should know that your comments in this post, prior posts, and future posts are limited to individual contracting officer practice. This is true even if you fail to qualify your comments.

If that is what you wanted to communicate, then you have failed. From "The brief statement I mentioned (see below) is included in the security attachment of my agency's contracts..." we're supposed to know that you are referring to individual contracting officer practice.

Further, your qualification of "individual contracting officer practice" when creating homemade clauses is unclear. What do you mean? Do you mean clauses created for an individual acquisition and not used on a repetitive basis? Clauses in your local clausebook? You say that the blurb above is used in your "agency's contracts". If such a blurb were to have a significant cost or administrative on contractors or offerors, then it would arguably be a deviation under FAR 1.401(f), even if the blurb were not inconsistent with the FAR.

Lastly, you write:

The notion that EVERY term and condition drafted by a contracting officer to meet the particular circumstances of his or her instant acquisition must be subject to the deviation and/or rulemaking process is absurd -- were that true, the entire acquisition process would grind to a halt as every specification, every SOW, and every other contract attachment would have go through the deviation or rulemaking process.

Do you realize that nobody has argued the contrary? You are resorting to the straw man fallacy.

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I am left with the question…..

Is the need suggested by Boof considered to be a "procedure" that has “significant cost or administrative impact” or in other words what is the standard that Boof’s need must meet with regard to cost or administrative impact to cause Boof to follow 41 USC 1707?

Without this question answered I do not see how it could be concluded that Boof would have to go through the rule making process.

Carl,

I think that the insertion of a contract clause in agency solicitations and contracts is a procedure that would implement the agency's policy. As far as the particular procedure having a "significant cost or administrative impact" on contractors or offerors, I base my opinion on the types of rules that typically go through rulemaking. I have seen FAR/DFARS rules requiring a lot less of contractors and offerors go through the rulemaking process.

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Don.

In my no. 23 that you quoted, you included my words "as a matter of contracting officer practice rather than agency head direction and regulation." And yet you are pretending like those words aren't there. But those words are there for anyone who has eyes to see.

So we are agreed, then? A term or condition drafted by the contracting officer and not inconsistent with the FAR can be used in a contract without a deviation and without the rulemaking process?

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Don, you used the word, "rulemaking" in your Post #97. I thought the OFPPA, not the APA, applied to publication related to the FAR. See 5 USC 553(a)(2) (exempting matters relating to contracts from APA rulemaking requirements). Cf. Rand L. Allen & Christopher R. Yukins, Bid Protests and Contract Disputes Under the FAA's New Procurement System, 26 Pub. Cont. L.J. 135, 152 (Winter 1997). See also this thread on wifcon: http://www.wifcon.com/discussion/index.php?/topic/630-what-parts-of-the-far-apply-to-me/?p=6026

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Thanks Don.....Guess I resign myself to the fact that just because agencies have gone through the process for a "lot less" does not mean it has to be so.

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